WIPO Achieves Single Legal Text On Genetic Resources; Indigenous Peoples BackPublished on 23 February 2012 @ 6:51 pm
By Catherine Saez, Intellectual Property Watch
After eight days of intensive drafting work, delegates at the World Intellectual Property Organization now have a text that will be submitted to the WIPO General Assemblies in September so that a diplomatic conference can be decided upon to finish negotiations on an international instrument protecting genetic resources from misappropriation.
Indigenous Peoples who had walked out of committee discussions this week (IPW, WIPO, 22 February 2012) reconsidered their decision after an informal consultation with the chair. They read a statement [pdf in Spanish] [pdf in English - unofficial translation] to that effect yesterday afternoon.
The WIPO Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (IGC) met from 14-22 February. This session was devoted to genetic resources and its mandate was to find agreement on a single negotiating text. That goal was achieved and the latest version [pdf] was issued on the final day as an annex to the draft decisions [pdf] submitted by the chair and adopted with some modifications.
Delegates had agreed on the text to be sent to the WIPO General Assemblies and yesterday a group of proponents of a Joint Recommendation on Genetic Resources and Associated Traditional Knowledge submitted and presented the joint recommendation in plenary with much discussion arising from this submission.
The text that will be transmitted to the WIPO General Assemblies is still work in progress, said meeting Chair Wayne McCook from Jamaica, and is a result of text-based negotiations. It emanates from several proposals on genetic resources protection that were on the table at the beginning of the session (IPW, WIPO, 15 February 2012). Three facilitators were tasked with compiling all the proposals together in a single document. The facilitators are Ian Goss of Australia, Raina Chandni of India, and Tom Suchanandan of South Africa.
Delegations were able to make comments and suggestions to the compiled text issued on 16 February (IPW, WIPO, 19 February 2012).
On 20 February, a Facilitator’s Consolidated Document Relating to Intellectual Property and Genetic Resources – As amended post plenary was issued [pdf]. Delegates were asked to go over the text on the giant screen of the plenary room and point out omissions or changes in the text that would not reflect the plenary discussions on the first versions of the text.
At midday on 21 February, delegates seemed satisfied that the document was a faithful account of the discussions that went on during the plenary sessions. In the afternoon, delegates were able to suggest additional comments and proceed to “deletions by consensus,” to avoid duplication, according to WIPO. Chair McCook insisted several times during the session on the attention brought to transparency and inclusiveness.
The fact that the committee has reached one of its primary mandate in agreeing on a single text that will be transmitted to the next WIPO General Assemblies is a “major step forward,” several developed and developing sources told Intellectual Property Watch.
“This negotiation process is important for developing countries,” a delegate from the Development Agenda Group told Intellectual Property Watch. Those countries “are waiting to harvest some results after a great deal of efforts,” he said. “If negotiations walk briskly, then it gives a positive influence on all other processes,” he said. The contrary situation would bring a negative influence on other processes, he added.
The text, as it stands, includes a list of objectives, followed by a list or articles, both with several options and a number of bracketed text. Systematically bracketed are the mentions of “intellectual property” versus “patent”, and derivatives. A main hurdle remaining is the mandatory disclosure of origin in patent applications.
US Proposal for Study on Consequences of Mandatory Disclosure
A delegate of the United States said on the final day that his delegation had requested twice in plenary sessions that the WIPO secretariat conduct a study on how existing mandatory disclosure mechanisms fulfil access and benefit sharing calls. “The US must base its decision on data and evidence,” he said. The study, he said, would “proceed in parallel with the IGC and in no way slow its work,” but would facilitate the work of the committee.
Egypt, for the African Group, said many studies had been conducted on the issue, and the WIPO secretariat could gather such studies. The list of studies could then be examined by delegates and if deemed not sufficient, a workshop or symposium could be convened so that WIPO members can share their national experience, he said.
This was supported by many developing countries, such as South Africa, India, Brazil, China, Kenya and Bolivia, while Japan and Korea supported the US.
Egypt on behalf of the African Group and South Africa both highlighted the time consumption to agree on the terms and reference of a study. They cited the recent three day discussion in the Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications (SCT) (IPW, WIPO, 4 February 2012). There is no call for a study in the mandate of the committee, said the South African delegate.
India said that evidence had already been produced over a long period of time, “starting with the 1998 fact finding mission that WIPO conducted on the basis of which the IGC was actually formed” and the process at the Convention of Biological Diversity leading up to the international treaty for example, had generated a large amount of information collected, he said, as well as in the framework of the World Trade Organization where many of the developing countries produced evidence that wrong and erroneous patents were granted.
The Indian delegate said “none of us here” want to give “the impression that we are against the patent system” but “there is a lot of free riding that is going on,” he said, and the companies are taking traditional knowledge and claiming that it is their own, to the detriment of local communities he said. For the integrity of the patent system it is important that such bad patents are not granted, he added.
Brazil said that it would be easy to find past studies and a number of examples of the lack of mandatory disclosure and the consequences for countries. He gave three examples of patent applications on Brazilian genetic resources (cupuacu fruit, copahiba, and andiroba) and said that a mandatory disclosure system would have prevented a lot of problems and the granting of erroneous patents.
Proposal for Soft Instrument, Canada Joins in
On the final day, delegates discussed a “Joint Recommendation on Genetic Resources and Associated Traditional Knowledge.” The document was first submitted by the delegation of Japan, Norway, Korea and the United States (IPW, WIPO, 17 February 2012). A second version of the document was issued on 21 February to include the delegation of Canada, which decided to co-sponsor the joint recommendation [pdf].
The joint recommendation proposed that member states “consider the use of this Recommendation” adopted by the IGC “as guidelines for the protection of genetic resources and associated traditional knowledge.” A joint recommendation is a soft instrument, without binding effects.
The US told the plenary that the document would not prejudice further work of the IGC on “additional means to reach the shared objectives.” The joint recommendation “recognises the important economic, scientific and commercial value of genetic resources and associated traditional knowledge and the role of the intellectual property system in promoting innovation.” It further stresses “the need to prevent patents from being erroneously granted and the need for patent officers to have the appropriate resources to search the prior art,” he said.
Following a discussion under which agenda item this joint recommendation should be discussed, delegates agreed to discuss it under “any other business” instead of agenda item 7 “Genetic Resources.” Several countries asked that the discussion be postponed to a future session of the IGC, including the African Group, the European Union, and the Development Agenda Group. Reasons included the fact that the joint recommendation is not part of the mandate of the IGC, was submitted late, and does not include mention of enforcement or compliance.
It was agreed that the proponents could resubmit their recommendation at the next session of the IGC dealing with genetic resources. The paragraph on Agenda item 10 “any other business” in the draft decisions drafted by the chair had to be amended following requests by developing countries.
The initial language was: “The Committee noted the submission of a ‘Joint Recommendations on Genetic Resources and Associated Knowledge’ (WIPO/GRTKFF/IC/20/9Rev.) and agreed that it could be discussed further at the next session of the Committee at which genetic resources is discussed again.” After amendments by the WIPO Secretariat and agreed language by the plenary, it was changed to “The Committee noted the submission of a ‘Joint Recommendations on Genetic Resources and Associated Knowledge’ (WIPO/GRTKFF/IC/20/9Rev.) and invited the proponents to resubmit the proposal if they deem fit at the next session of the Committee at which the theme of genetic resources is discussed again.”
Concerning the request for a study, the second paragraph of this agenda item was also amended as follows: “The Committee noted a number of proposals for studies, literature reviews and meetings concerning intellectual property and genetic resources, and took further notes of the Chair’s recommendation that the issue could be considered again at the next session of the Committee at which the theme of genetic resources is discussed on the basis of any written proposals that may have been tabled at that time.”
Industry View on Wrongful Patents
A representative of CropLife International told Intellectual Property Watch that the industry group “supports the goal of preventing the wrongful granting of patents.” The plant industry, he said, “supports practical, workable, and cost-effective regimes on access and benefit sharing (ABS) that are transparent and provide legal certainty to justify business investments.” “Therefore,” he said, the industry “supports the basic principles of prior informed consent and fair and equitable sharing of benefits from the use of genetic resources, as established in the Nagoya Protocol on Access and Benefit Sharing,” and the role of the International Treaty on Plant Genetic Resources for Food and Agriculture.
But on mandatory disclosure of origin in patent applications, he said “legal uncertainty could significantly decrease the value of certain genetic resources, thereby reducing investment in the use of such genetic resources” for much needed innovative products, such as agricultural products.
The next session of the IGC will take place from 16-20 April and will be devoted to traditional knowledge, followed by one in July addressing folklore (traditional cultural expressions). The aim of the committee is to present three negotiating texts to the General Assemblies in September.
Catherine Saez may be reached at firstname.lastname@example.org.